Amit Talukdar, J.
1. Should the Writ Court shrink to the suggestion that the relief sought for by the petitioner is covered with a tapestry of civil nature? Or should it shy away from the suggestion that there exists a viable and efficacious alternate remedy?
2. Either of those, if true, shutters have to be rolled down on the face of the petitioner who has claimed the following relief:
'A writ of and/or in the nature of Mandamus commanding the respondent Nos. 1 to 6 to cancel, rescind and/or withdraw the communication dated 9.10.92, being Annexure 'K' herein, and to take immediate steps for fixation of rent payable in respect of the premises in question with effect from the expiry of the original lease deed i.e. from 30th September, 1987 and then to enhance the same at an interval of every 5 years in terms of the directives and/or guidelines issued by the respondent No. 8 as mentioned in Annexure 'A' herein; keeping in mind the prevailing market rate.'
3. Prior to slamming the heavy Doors of Justice before the petitioner it is necessary to look into the core area of the matter which ails the petitioner and has tormented him to rush to this Court in its writ jurisdiction and find out as to why this Court in its said jurisdiction cannot even apply a healing touch to the suffering of the petitioner.
4. Factual matrix interwined with the legal position has to be set out for a proper appraisal of the entire scenario.
5. In the kaleidoscope of the events as unfurled in the writ application and factually goes unrebutted by the respondents it appears that the predecessor-in-interest of the petitioner entered into a lease (?) for ten years with the respondent No. 1 with effect from 27.8.80. However, the said lease (?) period was given retrospective effect from 30.9.77 although the Union of India retained absolute control and supervision over the respondent No. 1 which is a nationalised bank and had laid down guidelines with regard to the increase of rent in respect of leasehold premises. The respondent No. 1 was informed on behalf of the petitioner with regard to the proposed increase of rent before entering into a fresh lease. It seems that the respondent No. 1 did neither renew the lease nor take steps for payment of rent at the enhanced rate. Ultimately the respondent No. 1 through its letter of 09.10.92 (Annexure-K to the writ application) informed the petitioner that it will enhance the existing rent from Rs. 2,171/- per month to Rs. 3,000/- per month with effect from 01.10.92 inclusive of all rates and taxes; and a fresh lease-deed is to be executed by the petitioner for a period of 5 + 5 years with provision for enhancement in rent by 15 per cent after each block of 5 years and it will also grant loan to the petitioner for necessary renovations and repairs etc.
6. Shri Saktinath Mukherjee, learned Senior Advocate appearing on behalf of the petitioner with Shri Deba Prasad Mukherjee, Smt. Smritikana Mukherjee and Shri Buddhadev Ghosal submitted that the relief sought for in this writ application was de hors the contract as already the term of lease has expired the prayer of the petitioner now remains confined to that which is independent of the contract and only seeks to enforce the norms set up by the Central Government in Central Public Works Department (CPWD) Manual and this Court should have the matter either assessed by the CPWD or the Land Acquisition Collector to asses a fair rent.
7. As a part of his submission Shri Mukherjee referred to the decision of Ramana Dayaram Shetty v. International Airport Authority of India and Ors., : (1979)IILLJ217SC . With reference to paragraph 10 of the said judgment he submitted that since the nationalised banks are instrumental of the State that every action of the executive agency must be and should be free from arbitrariness which is the very essence of the rule of law and is a clear meaning of requirement of proper function of such agency. Referring to the said decision he further submitted that a public authority should be allowed at in its sweet will and the discretion of the Government Agency has to be used judiciously.
8. Shri Mukherjee next referred to the decision Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, : [1989]2SCR751 and submitted that where an executive agency within the meaning of Article 12 of the Constitution is vested with a power it must be reasonable and taken only upon lawful and relevant grounds of public interest.
9. Shri Mukherjee next referred to the two unreported decisions of this Court in Ruth & Co. Pvt. Ltd. and Anr. v. State of West Bengal and Ors., decided by D.K. Seth, J. in W. P. No. 17699(W) of 2000 on 19.12.2000 and Biswanath Dutta and Ors. v. State of West Bengal and Ors., decided by Altamas Kabir, J. on 20.8.93 in C.O. No. 13027(W) of 1993 in support of his contention that the Court can direct any authority to assess the rent in respect of a premises occupied by a public body. Reliance was also placed on the Division Bench judgement of this Court in Damodar Valley Corporation v. Mrityunjay Basu, 2000(1) CLT 15 (HC), on the issue that the Writ Court can give direction for fixation of rent by the Central Public Works Department (CPWD) Authorities.
10. The decision of D.C. Oswal v. V. K. Subbian and Ors., : AIR1992SC184 and Ratan Arya etc. etc. v. State of Tamil Nadu and Anr., : [1986]2SCR596 were also relied upon to show that Court can take judicial notice of the manifold increase of rent. Next, the decision of Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors., : AIR1970SC802 and Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Ors., : [1975]2SCR71 , were also placed on behalf of the petitioner that even in a writ .application the High Court can enter into question of fact.
11. Lastly, Shri Mukherjee on the question of alternative remedy the Division Bench relied on the decision of Monoranjan Bapri and Ors. v. State of West Bengal and Ors., CLT 1992(1) HC 19 and Jute Corporation of India Ltd. v. Nellimaria Jute Mills Co. Ltd. and Anr., CLT 1993(1) HC 79 and the decision of Sachin Barick General Enterprises (P) Ltd. v. Income Tax Officer and Ors., 1984(1) CLJ 75.
12. Appearing for the respondent No. 1 (Bank Authorities) Shri M. Rajasekhar disputed all the points which have been urged by Shri Mukherjee and distinguished the decisions referred to on behalf of the petitioner.
13. Shri Rajasekhar submitted that the writ petition was not at all maintainable as according to him it was a private contract between the landlord and the tenant in connection with an unregistered deed which has long ago expired having no public element at all. He referred to Ghan Shyam Das Gupta and Anr. v. Anant Kumar Sinha and Ors., : AIR1991SC2251 and submitted that the petitioner did not have any writ remedy as the Code of Civil Procedure contains an elaborate and exhaustive provision with regard to the prayer made by the petitioner. This Court should not interfere with the same.
14. Shri Rajasekhar submitted that when a statutory authority i.e., a Rent Controller is available the Writ Court should never interfere.
15. Shri Rajasekhar further submitted that the CPWD guidelines are not applicable as the bank is the creature of the particular Act and cannot have any manner of application. Shri Rajasekhar has further submitted that the respondent No. 1 is a tenant by sufferance and neither Land Acquisition Collector has any role with regard to fixation of rent or any other authority for that matter. It is only the appropriate Rent Act will govern the field. Shri Rajasekhar submitted that in view of Section 19 of The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 (hereinafter referred to as the said Act) the Board of Directors of a bank in consultation with the Reserve Bank and with sanction of the Central Government makes regulation for controlling the affairs of the bank. As such, the CPWD guidelines cannot have any binding effect in the dispute.
16. Shri Rajasekhar distinguished the decision of Biswanath Dutta and Ors. v. State of West Bengal and Ors. (supra) and showed that the said decision was quite inapplicable as therein His Lordship was dealing with a case where there was an earlier proceedings before the Land Acquisition Collector, but, in this case there was no such fixation of any rent by any authority. He also distinguished the decision of Ramana Daayram Shetty v. International Airport Authority of India and Ors. (supra) and submitted that since it is governed by the said Act, the ratio of the said decision cannot be squarely applied. He also submitted that both the decisions of Ramana Dayaram Shetty v. International Airport Authority of India and Ors. (supra) and Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay (supra) were prior to the decision of the Supreme Court in Ghan Shyam Das Gupta and Anr. v. Anant Kumar Sinha and Ors. (supra); as such, the latter decision was binding.
17. Shri Rajasekhar submitted that the entire gamut of dispute raised in this writ application are of relating to pure question of fact and the Court cannot decide the same only on the basis of affidavit evidence. He has submitted that the question of enhancement of fixation of rent is covered under the Rent Control Act; authority under the said Act should decide the question involved and it is far more premature for a Writ Court to come to any decision.
18. Shri Rajasekhar while distinguishing the decisions cited on behalf of the petitioner in Ramana Dayaram Shetty v. International Airport Authority of India and Ors. (supra) and Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay (supra) submitted that each decision has to be read in contextual position of the fact situation of the said case and should not be applied mechanically. He referred to the decision of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors., : AIR2003SC511 and the decision of Padmasundara Rao (dead) and Ors. v. State of T. N. and Ors., : [2002]255ITR147(SC) in this context.
19. Summing up Shri Rajasekhar submitted that the lease agreement has expired on 1987 and thereafter the respondent No. 1 has been continuing as a monthly tenant and if, according to the petitioner it is not fair rental in respect of the premises occupied by it, the question of re-fixing the rent cannot be decided in this forum; unless there is a legal right a mandamus cannot be issued as the 'Annexure-K' which has been impugned in the writ application does not create a right upon the petitioner to seek any writ remedy. Either the petitioner accepts the offer made in 'Annexure-K' or rejects the same. It is only the Rent Act that will apply; and as the bank is fully guided by the said Act and the CPWD guidelines has not been adopted this Court should not interfere. Shri Rajasekhar prayed for dismissal of the application.
20. In reply, it was submitted that in the new Act of 1997 (West Bengal Premises Tenancy Act) no post of Rent Controller has been set up in Uluberia. As such, there is no scope for the petitioner than to seek the remedy before the Writ Court.
21. An application for amendment being CAN 9586 of 2002 was taken out by the petitioner in pursuance of the leave granted earlier on 13.09.2002 by a learned Single Judge of this Court; the same was allowed by this Court after recording the objection of the respondent No. 1 that he does not admit the contents of the same; but, however, he has no objection for allowing the same; and the points were kept open at the time of hearing.
22. This application was taken out on behalf of the petitioner for the purpose of amendment of the writ application and to treat the facts pleaded in the schedule of the amendment as part of the writ application. The schedule related to certain guidelines laid down by the Central Government (respondent No. 8) with regard to increase of rent in respect of the leasehold premises held by the Government in its diverse circulars and memorandum and that as the Central Government retained absolute control over the nationalised banks it were bound by the circulars issued by the Central Government with regard to the guidelines about fixation of rent.
23. After having heard the submissions made at the Bar in the light of the decisions relied upon by the parties the twin question which have been posed in the preamble of this order is taken up for consideration together for effective disposal of this application.
24. The petitioner is a landlord who seeks to enhance the rent of a tenant whose lease had since expired and is not desirous of accepting the proposal in 'Annexure 'K' of the writ application made by the respondent No. 1 and has complained about arbitrary action on their part.
25. Firstly, the basic structure of the entire matter surfaces to a position which is nothing better than a landlord's suit against a tenant in the glorified precincts of the Mandamus Court. The question, as raised by Shri Mukherjee the leanred Senior Advocate for the petitioner that the respondent No. 1 being a public body cannot act arbitrarily and its action must be guided by reason in the light of the decision of Ramanan Dayaram Shetty v. International Airport Authority of India and Ors. (supra) as also the decision of Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay (supra) and the ratio of the decision laid down by the aforesaid two decisions of the Apex Court are, needless to say, trite position and there cannot be any qualms about the same. An action of the public body must be reasonable and guided by sound exercise of its powers within the peripheries of public interest. There is absolutely no dispute that the respondent No. 1 being a public body its action cannot be arbitrary.
26. The problem is elsewhere and has to be viewed in the light of the factual position.
27. The respondent No. 1 is a nationalised bank and it is formed under the said Act, as pointed out by Shri Rajasekhar. In view of Section 19 of the said Act the Board of Directors of the new bank in consultation with the Reserve Bank of India and with the previous sanction of the Central Government makes regulations with regard to the various administrative functions.
28. From a plain reading of the provisions of Section 19 of the said Act it appears that a nationalised bank is an autonomous body within the guidelines laid by the Reserve Bank of India and the Central Government, and the CPWD Manual, which this Court is very much afraid, cannot be said to have any application in respect of a nationalised bank.
29. If that be so, obviously the question raised by Shri Mukherjee, learned Senior Advocate pales into insignificance and the various averments in the application bearing CAN No. 9586 of 2002 with the contents of the amendments to justify adoption of the manual in respect of the bank has no merit.
30. After all, the dispute between the petitioner and the respondent No. 1 in view of 'Annexure-K' relates to fixation and/or enhancement of the rent which cannot under any circumstances be considered by the Writ Court.
31. The decisions referred to in the case of Ruth & Co. Pvt. Ltd. and Anr. v. State of West Bengal and Ors., (supra) and Biswanath Dutta & Ors, v. State of West Bengal and Ors. (supra) were completely on a different proposition. In both the cases there was a previous fixation of rent by an authority. In the decision of Ruth & Co. Pvt. Ltd. and Anr. v. State of West Bengal and Ors. (supra) the writ application was against a notice issued by the Estate Manager of West Bengal Khadi and Village Industries Board whereby the rent of the petitioner was enhanced against which the writ application was filed questioning the said enhancement. Whereas the case of the said Board was that the enhancement was done on the basis of the report of a Chartered Government Valuer. As such, in the said decision the Writ Court referred the matter to M/s. Tabloid & Co., Chartered Valuer for fixation of rent. Similarly, in the decision of Biswanath Dutta and Ors. v. State of West Bengal and Ors. (supra) which has been affirmed in appeal also does not have any impact in disposing of the instant case. The learned Single Judge in Biswanath Dutta's case was dealing with a prayer of the petitioner where already, as very correctly shown by Shri Rajasekhar, there was an earlier final assessment made by the Special Land Acquisition Officer, Howrah and thereafter His Lordship in the said decision disposed of the application directed revision of the rent in accordance with the valuation made by the Special Land Acquisition Officer, Howrah. Both these decisions, in the most humble view of this Court, have no manner of application and are quite distinguishable.
32. Similarly, the decision of Ddmodar Valley Corporation v. Mrityunjay Basu (supra) was squarely distinguishable as the facts are very much different and are glaring that it cannot come to the rescue of the petitioner in the present application. The Division Bench in Damodar Valley Corporation v. Mrityunjay Basu (supra) was dealing with a matter at the stage when the Supreme Court had sent the matter back on remand and at that stage the Division Bench referred the master to the Chief Engineer of the CPWD for determination of the rent Of the property, in question in the light of the order passed by the learned Single Judge and affirmed by the Supreme Court. The facts and circumstances of the ratio of the Division Bench decision in Damodar Valley Corporation v. Mrityunjay Basu (supra) according to the most humble view of this Court cannot retrieve the petitioner from the present position.
33. Pertaining to the question whether the Court can take judicial notice of the manifold increase of rent in the light of the decisions of D. C. Oswal v. V.K. Subbian and Ors. (supra) and Ratan Arya etc. etc. v. State of Tamil Nadu and Anr. (supra), this Court respectfully bows down to the ratio of the said decisions. But, in view of the picture which has emerged earlier the said question cannot arise at this forum. As such, with highest respect to the aforesaid two decisions it is held that the same cannot attract in the fact situation of the instant case.
34. The decisions of Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors. (supra) and Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Ors. (supra) that even in a writ application the High Court can enter into the question of fact is now taken up for consideration. In the first decision the Supreme Court had held that the High Court is not absolutely deprived of its jurisdiction to entertain a writ petition in connection with a relief on questions of fact. In the said decision it was held that the High Court has jurisdiction to try issues of fact as well as law. In the said decision the Supreme Court was dealing with a matter where the Punjab & Haryana High Court had dismissed the petition in limine. The Supreme Court further proceeded to hold that the discretionary exercise of jurisdiction in a writ matter must be based on sound judicial principles; but, at the same time also held :
'When the petition raises question of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition'.
35. This application, as indicated hereinabove that it is basically a landlord's suit against a tenant for increase of rent in the glorified guise of a writ application, as such it is felt, that the decision of Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors. (supra) does not have any impact in deciding the present case. Similarly, the decisions of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Ors. (supra) which took into account the selfsame ratio in the case of Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors. (supra) can be distinguished.
36. From a broad conspectus of the nature of the prayer (a) and the submissions of the learned Senior Advocate the issue that fructified for consideration is fixation of 'rent payable in respect of the premises in question.............'.
37. Since the entire issue is covered by a civil proposition and the pains of the petitioner can be usefully taken care of in the Civil Forum, the Writ Court would be an inappropriate place for the petitioner. Not only the petitioner is an absolute stranger to the Writ Court but the baggage which he has carried deserves to be discarded wholesale. For the purpose of fixation and even for enhancement of rent at the first instance the Writ Court cannot adjudicate the said question. Not only the question of fact looms large but taking of evidence is required with should be the duty of the appropriate Civil Court. Unless the petitioner can establish a judicially enforcible right and violation of a legally protected right, the Writ Court should never allow the petitioner to enter into even the forecourt of the Hall of Justice, that too even for a while.
38. Next, comes the question of alternative remedy which has also been perceived on behalf of the petitioner to a great extent. At the very outset this Court feels that the decision cited by Shri Rajasekhar in Ghan Shyam Das Gupta and Anr. v. Anant Kumar Sinha and Ors. (supra) is absolutely apposite in the fact situation of the instant case and can be squarely applied in the present case having fullest impact.
39. The decision referred to by Shri Mukherjee, learned Senior Advocate for the petitioner in Monoranjan Bapri and Ors. v. State of West Bengal and Ors. (supra), Jute Corporation of India Ltd. v. Nellimaria Jute Mills Co. Ltd. & Anr., (supra) and Sachin Barick General Enterprises (P) Ltd. v. Income Tax Officers and Ors. (supra) are considered with utmost circumspection in the factual context of the present case.
40. Law relating to alternative remedy has by now been fully crystallized by various decisions of the Hon'ble Supreme Court. Alternative remedy can be availed of by a petitioner seeking relief in a Writ Court and as the said remedy in writ jurisdiction is generally discretionary, the Court before granting it has to satisfy that as the existent alternative remedy is equally efficient and adequate. It is the onus on the petitioner to show that the alternative remedy is not adequate and the only course is for relief in the writ jurisdiction.
41. In this context this Court is emboldened with the series of the latest decisions of the Supreme Court on this subject. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., : AIR1999SC22 , Their Lordships in the said decision held that although the existence of an alternative statutory remedy is not a Constitutional bar for the High Court's jurisdiction but is a self-imposed restriction and it only be available if (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged it is only then notwithstanding an alternative remedy being available it will be open for the petitioner to move the Writ Court. Similarly, in Seth Chand Ratan v. Pandit Durga Prasad (D) by LRS and Ors., : [2003]3SCR75 . Their Lordships of the Supreme Court clearly held :
'It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the Court may in exceptional cases issue a discretionary writ of certiorary. Where there is a complete lack of jurisdiction for the officer or authoriti or Tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under the provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief.
42. In view of the said position as apparent from the decision of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. (supra) and Seth Chand Ratan v. Pandit Durga Prasad (D) by LRS and Ors. (supra) where there exists an adequate remedy by way of an ordinary action in the Civil Court to enforce his right it is inappropriate for the petitioner to rush to the Writ Court circumventing the arena of the Civil Court for seeking relief of a purely civil nature under the cloak of Constitutional paradigm which the Writ Court should be slow to accede.
43. In the light of the position which has been discussed in the foregoing paragraphs this Court is of the considered view that as the issue involved in the application is purely civil in nature, the writ application is not maintainable and on the other hand as there is an alternate and viable and also equally efficacious alternate remedy being available in the hands of the petitioner, should now go before the appropriate forum, if so advised.
44. The reply of the petitioner pointing out that in the new Kent Control Act of 1997 the Rent Controllers have not been appointed as yet as such the petitioner has no other choice other than to move this Court need not arrest the attention of this Court even for a while. The lease, firstly, expired way back in 1987 when very much the earlier Rent Act was alive containing the provisions of Rent Controller etc. But the writ petitioner ignored the said process instead came before the Writ Court and secondly, by now the structure in the new Act being set up the question raised in the reply has absolutely no force.
45. More so when the question of the application of CPWD Manual has been found to be non est and the reference to any other mode by way of taking recourse to any agency for fixing the rent at the first instance by the Writ Court being questions of fact would be the functional mechanism of a Trial Court the Writ Court should not come to the rescue.
46. Where there exists a formidable remedy in a statutory forum set up under the law and is time tested it is not prudent to activate the already bursting docket of the writ jurisdiction for a cause which has no existence.
47. The Civil Procedure Code and the relevant Rent Act of our country are so compact and has withstood the onslaught of time may be it is time consuming; but, magic remedy by way of pricking 'Constitutional conscience' of the Writ Court simply adds to the cobweb of the circuitous process of the legal labyrinth and nothing more.
48. Of late there is a growing tendency to rush to the Writ Court even at the drop of the hat for remedies which ultimately prove to be a teasing mirage.
49. The plenary powers of the High Court under Article 226 of the Constitution of India is even wider than Article 32 and has an inherent clause and for any other purpose which confers wide range of jurisdiction to the Court while exercising its writ powers, Although, very sweeping powers are vested in this jurisdiction but the same has to be exercised with utmost circumspection and particularly, resort to the jurisdiction under Article 226 of the Constitution can never be intended as an alternative remedy for relief which can easily be obtained by filing a suit which has been prescribed by an old-age statute.
50. As it has been discussed earlier unless there is a judicially enforceable remedy the Court should not interfere as apart from the fact that the relief sought for in this jurisdiction being discretionary, circumvention of an existing viable statutory remedy is not appreciable simply to achieve speed and random recourse to this jurisdiction will result more in its abuse that its use as originally intended by the Founding Fathers.
51. Taking into account the whole body of arguments advanced at the Bar in the light of the decisions cited this Court is of the considered view that there is absolutely no merit in the writ application, accordingly, the same is dismissed.
52. Interim order granted earlier is vacated.
53. However, needless to say that the disposal of this writ application can never have, even in a slightest manner, any effect on any subsequent suit or corollary relief that may be sought for at the instance of either the petitioner or the respondent No. 1 as any observation made in this writ application would be deemed to have been made only for the purpose of proper disposal of the same.
54. No order as to costs. Later:
55. After this order is pronounced in open Court, the learned Counsel for the petitioner has prayed for stay of operation of this order for a period of four weeks. In view of the fact that the decision passed by this Court is based on well-settled principle of law and on the various decisions of the Apex Court, prayer for stay is considered and refused.
56. Urgent xerox certified copy of this order, if applied for, be supplied forthwith.
Amit Talukdar, J.